Understanding Evidence - Chapter 7 - Case Preparation and Presentation: A Guide for Arbitration Advocates and Arbitrators

Rocco M. Scanza and Jay E. Grenig both serve on the American Arbitration Association's labor panel.

Mr. Scanza is an Attorney, Arbitrator and Mediator of labor and employment disputes. He is also the Executive Director of Cornell University's Scheinman Institute on Conflict Resolution, where he teaches courses in workplace alternative dispute resolution. Mr. Scanza was formerly a national Vice President at the American Arbitration Association. He graduated from Queens College in New York City and Loyola Law School of Los Angeles. He lives and works in Ithaca, N.Y.

Mr. Grenig is a Professor of Law at Marquette University Law School. He has served as an arbitrator or mediator in over 2,000 labor and employment disputes. A member of the National Academy of Arbitrators, the American Law Institute, and the Order of the Coif, Mr. Grenig is also a fellow of the College of Labor and Employment Lawyers. He formerly chaired the Labor and Employment Law Section of the Association of American Law Schools and served as a consultant to the National Commission on Employment Policy. He has written or co-written numerous books and articles.

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Originally from Case Preparation and Presentation: A Guide for Arbitration Advocates and Arbitrators

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§ 7:01 GENERALLY

Both in preparing and in presenting and deciding arbitration cases, an understanding of the basic rules of evidence is important. Without an understanding of the rules of evidence, an advocate cannot determine what documents and witness testimony will be admissible and persuasive. An understanding of the rules is also in determining who has the burden of persuasion and the quantum of proof required.

It is often said that the formal rules of evidence do not apply in arbitration.1 For example, Rule 28 of the American Arbitration Association’s Labor Arbitration Rules states: “The arbitrator shall be the judge of the relevance and materiality of the evidence offered and conformity to legal rules of evidence shall not be necessary.”2

This principle recognizes that many of the technical and legal rules of evidence were originally developed to protect juries from prejudicial or unreliable evidence.3 If a judge admits evidence that a jury should not have heard of seen, the verdict may be overturned. When a judge hears a case without a jury, the judge frequently will not strictly apply the rules of evidence. The possibility exists that the judge’s decision will be reversed because the judge admitted evidence that should not have been admitted. However, the exclusion of evidence that should have been admitted may result in reversal.

For the same reasons, the formal rules of evidence are not strictly applied in arbitration. The liberal application of the rules also recognizes there is a value in arbitration to admitting more evidence than is technically admissible in court so the parties can explain how they feel. It is not uncommon for a party to feel dissatisfaction with the hearing process—regardless of the outcome—where the party believes the party was not given a full opportunity to tell the party’s side of the story.